DO YOU THINK THIS WOMAN DESERVED A PAT DOWN?

FOURTH AMENDMENT [U.S. Constitution]
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

To pass muster under the Fourth Amendment, detention must be 'reasonable. ' See U.S. v. Montoya de Hernandez, 473 U.S. 531, 542-44 ('85) (analyzing constitutionality of length of traveler's border detention under Fourth Amendment reasonableness standard); Caban, 728 F.2d at 75 (considering whether duration of border detention without a hearing was reasonable).

In the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct. 1661, 670 ('91). However, the Supreme Court arrived at this rule by considering the time it takes to complete administrative steps typically incident to arrest. See id.

Unreasonable Searches And Seizures.

Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 16 ('89) ('this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy'); Schmerber v. California, 384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment').' '[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.' Skinner, 489 U.S. at 619; accord Vernonia School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at *3 (June 26,'95) ('the ultimate measure of the constitutionality of a governmental search is `reasonableness''). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 ('83).

Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. E.g., Michigan State Police Dept v. Sitz, 496 U.S. 444, 450 ('90); Terry v. Ohio, 392 U.S. 1, 20 ('68).

The gathering of fingerprint evidence from 'free persons' constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense. See Hayes v. Florida, 470 U.S. 811, 813-18 ('85); Davis v. Mississippi, 394 U.S. 721, 726-28 ('69).

Nevertheless, everyday 'booking' procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See Smith v. U.S., 324 F.2d 879, 882 (D.C. Cir.'63) (Burger, J.) ('it is elementary that a person in lawful custody may be required to submit to . . . fingerprinting . . . as part of the routine identification processes'); Napolitano v. U.S., 340 F.2d 313, 314 (1st Cir.'65) ('Taking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.'). Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.

Although the drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense, see Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___, slip op. at 5753-54 (9th Cir.'95) (en banc), the absence of such a warrant does not a fortiori establish a violation of the plaintiffs' Fourth Amendment rights.

The Supreme Court has noted repeatedly that the drawing of blood constitutes only a minimally intrusive search. Skinner, 489 U.S. at 625 (blood tests do not 'infringe significant privacy interests'); Winston v. Lee, 470 U.S. 753, 62 ('85) (not 'an unduly extensive imposition'); Schmerber, 384 U.S. at 771 ('commonplace'); Breithaupt v. Abram, 352 U.S. 432, 36 ('57) ('routine' and 'would not be considered offensive by even the most delicate').

'An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.' Skinner, 489 U.S. at 421-2 (holding that a warrant was not required in part because 'in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate'). The Supreme Court recently reaffirmed and expanded the principle first enunciated in Skinner, stating that, in some contexts, 'testing based on `suspicion' of [wrongful activity] would not be better, but worse' than suspicionless testing. Acton, 1995 WL 373274, at *8. In Acton, the Supreme Court upheld as constitutional a school district's practice of conducting random, suspicionless urine testing of school athletes for drug use. The Court rejected the proposition that the school district could conduct such testing only if school officials had suspicion that a specific athlete was using drugs, holding that this alternative 'entails substantial difficulties -- if it is indeed practicable at all.' Id. Accusatory drug testing would 'transform[] the process into a badge of shame' and would increase the risk that school officials would impose testing arbitrarily upon disfavored, but not drug-using, students. Id.

Except in certain narrowly limited cases, the Court repeatedly has stated its 'insist[ence] upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.' Chambers v. Moreny, 399 U.S. 42, 51 ('70). Because '[t]he integrity of an individual's person is a cherished value in our society,' searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: 'The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.' Schmerber, 384 U.S. at 772, 769-70.

Only when law enforcement faces an exigent circumstance, such as a need to preserve evanescent blood alcohol evidence, and has probable cause to link the sought-after information to a crime under investigation is it constitutional to conduct nonconsensual blood testing without a warrant. Id. at 770-71. Therefore, forced extraction of blood not only 'implicates the Fourth Amendment,' as the majority notes, but also falls squarely within the area of privacy interests for which the traditional probable cause requirement determines reasonableness in the law enforcement context. Forced blood extraction intrudes on the private personal sphere and infringes upon an individual's 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U.S. 753, 60 ('85).

Searches Involving Intrusions Beyond The Body's Surface.

Schmerber v. California, 384 U.S. 757, 69 ('66). The Schmerber Court posed two questions: (1) whether the police were justified in imposing a nonconsensual blood test and (2) whether the procedures themselves were reasonable. Id. at 768. In answering the first question, the Court recognized that it was 'writ[ing] on a clean slate' regarding the treatment of searches that involve intrusions into the human body. Id. at 767-8. It concluded that such searches require probable cause. Id. at 770-1.

Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753 ('85), recognized that Schmerber's threshold standard was a requirement of probable cause 'where intrusions into the human body are concerned,' which implicate 'deep-rooted expectations of privacy.' Id. at 761, 760. The Winston Court then acknowledged `other factors'' eyond these standards' that must be considered in determining whether a particular intrusion is reasonable: whether 'the procedure threatens the safety or health of the individual' and 'the extent of the intrusion upon the individual's dignitary interests.' Id. at 761 (emphasis added). In regard to the additional 'dignitary' factor (beyond the threshold inquiry of invasion of bodily integrity), the Winston Court noted Schmerber's recognition that blood extraction is not 'an unduly extensive imposition.' Id. at 762. The Court contrasted this lesser bodily invasion, which the Schmerber Court had upheld upon demonstration of probable cause, with the more drastic measure of dangerous surgery to recoup criminal evidence, which the Winston Court concluded would violate the individual's Fourth Amendment rights even when supported by probable cause. Thus again, the context of the quotation demonstrates that the Court places blood extraction squarely within the probable cause requirement because it is an invasion of bodily integrity, while at the same time acknowledging that it is a less extensive imposition on dignitary interests than surgical removal of a bullet.

Investigatory Stops Of Motorists At Sobriety Checkpoints.

The unique situation in which the Supreme Court has approved suspicionless searches in the traditional law enforcement context. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 ('90). The Sitz Court relied on well-settled law that motorists have a lessened expectation of privacy regarding stops and visual searches of automobiles on the nation's roadways. Id. at 450 (explaining the importance of the context of 'police stops of motorists on public highways'). At these sobriety checkpoints, which motorists may choose to avoid, only the initial brief stop and preliminary questioning may take place without individualized suspicion: 'more extensive field sobriety testing' requires justification. Id. at 450-2.

Like the highway sobriety checkpoints, the 'special needs beyond normal law enforcement' rationale supports searches on lesser grounds than probable cause only in a very few, carefully tailored regulatory contexts that do not involve apprehension of criminal perpetrators. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 65-66 ('89) (applying the special needs exception to suspicionless quasi-consensual drug testing of Customs Service employees seeking transfer to positions having a direct involvement in drug interdiction).

The special needs exception covers testing which 'is not designed to serve the ordinary needs of law enforcement [because] . . . results may not be used in criminal prosecution.' Von Raab, 489 U.S. at 666 (emphases added). Even so, a search in the special needs context almost always requires individualized suspicion. See, e.g., Portillo v. U.S. Dist. Court, 15 F.3d 819, 823 (9th Cir.'94) (requiring individualized suspicion for urinalysis testing under the probationer special needs exception). The rare special needs cases which do not require individualized suspicion involve persons who voluntarily participate in a highly regulated context. See, e.g., Von Raab, at 671, 677 (noting that 'certain forms of employment may diminish privacy expectations' for the 'employees who seek to be promoted' to certain positions); Vernonia School Dist. v. Acton, 1995 WL 373274, *6-*7 (U.S. June 26, '95) (noting that schools are highly regulated and 'like adults who choose to participate in a `closely regulated industry,' students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy').

Nonetheless, routine searches that intrude into prisoners' bodies without probable cause may be upheld only when the search is undertaken pursuant to a valid prison regulation that is reasonably related to a legitimate penological objective. Turner v. Safley, 482 U.S. 78, 87-91 ('87); see, e.g., Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.'90) (remanding for evidence of a specific penological objective because 'general protestations of concern for the welfare of the citizens of Nevada and the prison community are simply insufficient to render the involuntary seizure of blood specimens, even from prison inmates, constitutionally reasonable').

Individuals have a categorically different and lesser expectation of privacy in their fingerprints, visual images, or voice prints

- even when their production is compelled -- because they are personal attributes that are routinely exposed to the public at large in daily life. Katz v. U.S., 389 U.S. 347, 51 ('67) (finding a lesser expectation of privacy in personal effects that 'a person knowingly exposes to the public, even in his own home or office').

The Fourth Amendment provides no protection for what 'a person knowingly exposes to the public'. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.

The required disclosure of a person's voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber . . . . Rather, this is like the fingerprinting in Davis, . . . [which] 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' U.S. v. Dionisio, 410 U.S. 1, 14-15 ('73) (quoting Katz v. U.S., 389 U.S. 347, 51 ('67), and Davis v. Mississippi, 394 U.S. 721, 27 ('69)) (emphases added).

'Fingerprinting' - like the compelled production of other aspects of an individual's identification that are routinely exposed to and superficially observable by the public at large, such as voice prints, handwriting exemplars, and photographs - simply belongs to a different category of search that 'represents a much less serious intrusion upon personal security than other types of searches and detentions.' Hayes v. Florida, 470 U.S. 811, 14 ('85).*fn10 The majority's analysis obliterates this critical constitutional distinction between coerced fingerprinting and blood extraction for DNA genetic pattern analysis.

Blanket Searches.

Blanket searches are unreasonable, however 'evenhanded' they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 ('79) (invalidating a blanket patdown search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but 'evenhanded' general police searches.

In Zurcher, the Supreme Court held that a search of the offices of a university newspaper, which was not involved in any criminal activity, for photographs of demonstrators who had assaulted police officers did not offend the Fourth Amendment's ban against unreasonable searches and seizures. The court concluded: '[T]he Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated.' Zurcher v. Stanford Daily ('78) 436 U.S. 547, 549-50.

Fourth Amendment protects the 'right of the people to be secure in their persons . . . against unreasonable searches and seizures.' The essence of that protection is a prohibition against some modes of law enforcement because the cost of police intrusion into personal liberty is too high, even though the intrusion undoubtedly would result in an enormous boon to the public if the efficient apprehension of criminals were the sole criterion to be considered. 'The easiest course for [law enforcement] officials is not always one that our Constitution allows them to take.' Wolfish, 441 U.S. at 595 (Stevens, dissenting).

A permanent resident alien is entitled to constitutional protection. See Landon v. Plasencia, 459 U.S. 21, 32-4 ('82) ('[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.'). In particular, to Fourth Amendment protection against unlawful seizures. See Benitez-Mendez v. INS, 760 F.2d 907, 09-10 (9th Cir.'85) (finding that INS seizure of alien violated Fourth Amendment); see also INS v. Delgado, 466 U.S. 210, 213 n.1, 215-21 ('84) (considering whether questioning of resident aliens by INS agents amounted to seizure for purposes of Fourth Amendment); Martinez v. Nygaard, 831 F.2d 822, 824, 826-28 (9th Cir.'87) (analyzing whether seizures of three resident aliens complied with Fourth Amendment).






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Nice copy and paste there. But it doesn't contain a single line about security checks in airports. So I googled for "airports 'fourth amendment'", and found a summary of the caselaw in a blog post by Orin Kerr. (Kerr is a law professor specializing in criminal procedure.)


You can read the full blog entry here.

It looks as if the constitution isn't on your friend's side here.

There is an airport in Florida which has opted out of using the TSA, and is hiring their own security firm.

http://www.examiner.com/libertarian-in-national/florida-airport-to-opt-out-of-tsa-screening

Thanks Drewdad

And then ..


Bombshell: Former Homeland chief got 'sweetheart deal' selling scanners to TSA
November 17th, 2010 12:38 pm ETDo you like this story?
[Note to readers: I will be a guest tomorrow, Thursday, Nov. 18, on the Jim Vicevich Show on WTIC 1080, Hatford, discussing the TSA's intrusive practices. The segment will run between 10 and 10:30 a.m. I hope you will all join me.]

In a speech on the floor of the House earlier today, Congressman John J. Duncan, Jr., of Tennessee, dropped the boom on the Transportation Security Administration for its invasive “pat-downs” and use of potentially harmful scanners in airports. Both topics have dominated the headlines in recent days as the country braces for its busiest airline travel day of the year, Thanksgiving, which is just over a week away.

But Duncan’s focus was not just the high cost of implementing new scanners or the plight of hapless Americans, who bristle at the thought of having strangers grope their young children or expose them to harmful doses of radiation. Rather, the congressman took aim at the role played by lucrative government contracts in the development of cutting-edge airport full-body scanning technologies.

In particular, he took aim at former Secretary of Homeland Security Michael Chertoff, who Duncan accuses of having made a sweetheart deal with Rapiscan, a company whose backscatter scanners use one of two technologies at the center of the current controversy.

The text of Rep. Duncan’s speech is as follows:

Mr. Speaker:

A nationwide revolt is developing over the body scanners at the airports, and it should.

Hundreds of thousands of frequent fliers who fly each week are upset about getting these frequent doses of radiation.

Parents are upset about being forced to have their children radiated or being touched inappropriately by an unrelated adult.

There is already plenty of security at the airport, but now we are going to spend up to $300 million to install 1,000 scanners.

This is much more about money than it is about security.

The former Secretary of Homeland Security, Michael Chertoff, represents Rapiscan, the company which is selling these scanners to his former department.

Far too many federal contracts are sweetheart, insider deals.

Companies hire former high ranking federal officials, and then magically, those companies get hugely profitable federal contracts.

The American people should not have to choose between having full-body radiation or a very embarrassing, intrusive pat-down every time they fly, as if they were criminals.

We need a little more balance and common sense on this.

The TSA is definitely dedicated to keeping us safe in the air, and is totally not a sinecure for otherwise unemployable buffoons who are unable to employ a little judgment.

TSA takes nail clippers from soldier carrying assault rifle.




Yes. Nail clippers are endangering the flying public, but it's completely permissible to carry a large club onto a plane.

It's getting out of control. That's so ridiculous.

On a somewhat related topic about protecting our rights and privacy, our telephone company has called for my husband twice. Both times he wasn't home and I told them I was his wife asked them what they wanted. Both times they told me they couldn't tell me and could only speak to him. Nuts. They couldn't even tell me that? Also, I phoned to cancel our newspapers when we went on our honeymoon. No problem. But when I called to restart them, they wanted him to call with a security code. For a newspaper? That's lunacy too. I said, "Don't bother then." Somehow, the papers are being delivered without the security code.

Only the section of the population that flies. The rest of us are tittering. And I think we are in a majority. Watching people trying to find an answer when there isn't one is quite funny. In the "flyover" states it probably looks mystifying. At least to those who are not aware of the fact that they are helping pay for it.

The problem is with "intended". That implies a deliberate policy rather than one which is inevitable given the nature of bureaucracy and the problem/s it is dealing with. It implies a conspiracy as opposed to a natural happening. A bureaucracy is a thing.

At least a conspiracy is not marked by confusion. The confusion of the happening means that our enemies have got us running around like headless chickens. Which is what they intended. Killing people is only the mechanism.

To get a bit speculative one might say that the value we place on human life is a weakness when an enemy, who values life not at all, learns how to exploit it in certain circumstances. A lot of effort and treasure is being expended with no economic gain. It's tough stuff.

Faith

It's heard to resist weighing in to the TSA scandal...
especially since I just canceled a flight to Toronto
to drive instead so I can avoid the "handlers."

Here's a song by Nat KIng Cole with some advice
to the lunatics who run the TSA:

"Straighten up and fly right!"

I hear Orlando is throwing the TSA out of its airport
and replacing them with private security, an option
open to EVERY airport in the US.

Straighten up and fly right TSA or you're going to
find yourself out of every serious airport in America
(and nobody's going to miss you)...

Music:

http://www.jazzonthetube.com/page/806.html

I didn't even know it was happening to me if it has happened. Where are these body scanners and what do they do? I fly quite a lot and as far as I can see, nothing's different or changed. I empty my pockets, take off my shoes - if I'm not wearing flip flops or sandals- and walk through the metal detector.

My daughter was once instructed to take off her hoodie or get patted down and she complied and took off her hoodie. But I think that was only because the guy was a cute young guy and she's a cute young girl, I think he was hoping she wouldn't take off her hoodie so he could pat her and was consequently disappointed.

Which airports is this happening at? In the past year I've flown in and out of Bristol and Heathrow (UK) airports - and in and out of Newark (NJ) JFK (NY), Ohare (Chicago), Kansas City, St. Louis, Dallas/Fort Worth and San Antonio airports....never any inconvenience or issue.

What a tempest in a teacup - or whatever that saying is.

So the phone rings and I answer, "is Diane there?" I answer "she's in the bath, this is her husband, who's calling please?" "That's confidential but she has a appointment with her Dr on thursday at 1:30"
The thing is Diane sees 3 different Dr's and she guesses which one called and went for the appointment. Wrong Dr.

I like your idea McGentrix!

"Don't bother" is is the security code, obvs.

That's been in place for a while now, from my experience. Shoes and outerwear must be removed or you'll be asked to step aside for an enhanced screening. Also if anything is detected in your carryon.



Not all airports have the full body scanners yet. Every thing else seems to be pretty random. I've carried manicure scissors in my carry on a half dozen times or so, but at the 7th airport, they were confiscated. I mentioned the inconsistency to the TSA agent but didn't push it (we were already scrambling to make our plane).

I always ask when I'm detained for enhanced screening, though. (Mr.Irish has never been selected...just me). They always say the same thing...like out of a manual...that it's a random computer selection. Up until now, they just swabbed my carryon and checked me with the wand. We'll be traveling a lot over the holidays, so I'm curious how much will have changed from last year.

I'm always the random guy, too.

funny that.

How about rejecting useless security theater?



What increase in security? The US airport security is the source of several of the stupidest things I have seen in my lifetime, and it boggles my mind that so many people assume they have the slightest notion about what they are doing.

This is yet another stupid bit of hazing that the American flyers are subjecting themselves to. Flying through America was already ridiculous before this nonsense and the amount of credulity given these processes with blind faith makes me think Americans deserve them.

America is a nanny state, the least free place I have ever lived. It is like a bunch of paranoid grandmothers control the country and pass laws to protect the citizenry from themselves, and random bogeymen. It never ceases to amaze me that such an individualistic, freedom-loving (in theory only) people submit themselves to such quotidian indignity (and not because of any sexual component, just because of the sheer stupidity).

P.S. terrorists should start striking airport security lines, the TSA stupidly have everyone all piled up for them in one place before any attempt at security takes place.

As a frequent flyer, inside and outside the US, I tend to agree with you...

You probably look like suspicious characters in Hollywood movies Rockie. Which really should be the least likely to be picked on.

Maybe people in uniform with short haircuts and polished shoes are envious of your freedom spirit and victimise you to get their own back.

I have to agree here too! I've been to many airports around the world but
what the U.S. is doing now is just plain harassment of every traveler. If you
think that airline crews have to go through this day in and day out - unacceptable.

Yes, I agree with everything RG said.

So you're in the hot seat Cal. A plane goes down and it turns out that the young female who blew it, and herself, out of the sky had passed the lax security at your airport.

There are people in hot seats all over this lot and none of them want hanging out to dry in courts.